2001 PLP 2364 (YLR)

"... S.12(2)

Allegation of fraud and misrepresentation, determination of

Investigation into question of fact

Framing of issues

Scope

Determination of such allegations ordinarily involved investigation into a question of fact and in such case an inquiry is ordinarily to be .held to decide the matter

Court is not under obligation in every case to frame issues, record evidence of the parties and follow the Procedure prescribed for decision in a suit-- Matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application the Court may in its discretion adopt any mode for its disposal. " The learned counsel for the applicant has mainly contended that the Muslim Law permits transfer of properties through oral gifts and the same are to be acted upon. In support of his contention the learned counsel has relied upon the case of Abdul Sattar Dadabhoy and another v. The Honorary Secretary, Pakistan Employees Cooperative Housing Society. Karachi and another PLD 1998 Karachi 291 I am in respectful agreement with the said view taken by a Division Bench of this Court and there is no cavil with this proposition that Muslim Law permits making of gifts orally, but it does not' mean that mere saying that a particular property was orally gifted by a deceased particularly under the circumstances as existing in this case, should be taken as gospel truth. Admittedly, the applicant who was inducted as a tenant in the house in question by late Sirajul Hassan shall always be deemed to be so, unless otherwise proved through substantial evidence. Mere payment of the utility bills in his name by an occupant does not make him owner of the property. Some judicial or administrative order based on substantial proof of the ownership is required for the purpose and mere insertion of name of a person in the column of owners in utility bills does not mean that he has become owner of the property. If any such proposition is given any weight, it shall become highly dangerous as any tenant of a property managing entries in the utility bills by fair or foul means shall-start claiming to be owner as against the real owner. Hence the bills and the PT-I form produced by the applicant cannot lend any support to his case. Furthermore, the applicant cannot get out of his own statement recorded before the Official Assignee of this Court on two different dates. Had there been any gift in his favour; he would have stated such fact during his statement. It shall be beneficial to produce his statement, a certified copy whereof has been placed on record alongwith the objections/counter-affidavit of respondent No.6, and has gone unchallenged, un-controverted and unrebutted, which reads as under:-- "Name: Mirza Mustafa Ali Beg, Father's Name: Mirza Mehmood Ali Beg, Caste: Mirza. Address:-- 91 /A - Block-I, G.Iqbal-24. On S.A. To, Mr. Zafarul Hassan Qureshi. I am tenant in respect of House No.91/A, Block-1, Gulshan-e-Iqbal. I had taken this house on rent from late Sirajul Hassan who was my landlord. I am paying Rs.400 p.m. as rent since then. I had obtained this house for the purpose of residence as well for running a school. In one room I am residing with my family. In other room I am running a School in the name .of N.M. Secondary School. I was paying rent to late Sirajul Hassan. The last payment was made to. him in the hospital in the presence of his sister Mst. Sayeeda Begum. I am occupying the premises since then. I am occupying this house since March 1975. It is not a fact that this school was started after the death of Sirajul Hassan. This house was in the name of his wife Mst. Fazilatunissa whose name plate is still there. Nil. R.O.S. A. C. (Sd.) OFFICIAL ASSIGNEE 15-1-1989. (Sd.) Mirza Mustafa Ali Beg. Re-examination to Mr. G. Muhammad Advocate I have no written permission from Sirajul Hassan for running School in the part of the house. It is not correct that Sirajul Hassan had given me this house for residential purpose only at a rate of Rs.400 p.m. I can produce same of the rent receipts which were given by Sirajul Hassan. I had stated before Nazir of this Court that I am prepared to deposit amount of Rs.51,450 in Court on account of rent upto September, 1984 in instalments after deducting the expenses incurred by me. R.O.S.A.C. (Sd.) OFFICIAL ASSIGNEE 6-2-1989." It has been rightly argued by the learned counsel for the respondents that apart from merits of the case, this application is hopelessly time-barred. Under Article 181 of the Limitation Act, the maximum time limit provided for filing such applications is three years. The contention of the applicant that he was unaware of pendency of the suit between the legal heirs of late Sirajul Hassan in respect of the property in question stands contradicted and belied by his own statement as referred to above made by him as d witness in such dispute. The plea that the applicant was unaware of any such litigation and that he came to know about the impugned judgment and decree only on 20-11-1999 is a false and concocted plea which has no legs to stand. The upshot of the discussion made above is that the applicant has no case on merits. He has also not approached the Court with clean hands and within the time prescribed by the law hence this application under section 12(2), C.P.C. appears to be malicious in nature and no other view can be taken that it has been filed to usurp and grab and property which is in possession of the applicant as a tenant and he wants to take undue advantage of the litigation between the legal heirs of late Sirajul Hassan. The application is dismissed with special compensatory costs of Rs.20,000 (Rupees twenty thousand) to be paid by the applicant to the legal heirs of Respondent No. 1, and the respondent No.6 half and half. Q.M.H./M.A.K./M-226/K Applica tion dismissed.